Air Crash in Florida Everglades v Valujet Airlines Inc. (& Others)

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 01 July 1999
• Neutral Citation: 1999 WJSC-HC 46
• Court: High Court
• Date: 01 July 1999

1999 WJSC-HC 46

THE HIGH COURT

1999 No. 2FTE

AIR CRASH IN THE FLORIDA EVERGLADES v. VALUJET AIRLINES INC & ORS

IN THE MATTER OF FOREIGN TRIBUNALS EVIDENCE ACT 1856

AND IN THE MATTER OF AN APPLICATION PURSUANT TO ORDER 39 RULE9

OF THE RULES OF THE SUPERIOR COURTS 1986

AND IN THE MATTER OF CIVIL PROCEEDINGS NOW PENDING BEFORETHE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDACASE

NO 96 - 1542-CIV-DAVIS AND TWELVE CONSOLIDATED CASES

IN RE AIR CRASH IN THE FLORIDA EVERGLADES ON MAY 11TH1996

PLAINTIFF

V

VALUJET AIRLINES INC AND OTHERS

DEFENDANTS

Citations:

FOREIGN TRIBUNALS EVIDENCE ACT 1856 S1

ECCLES & CO V LOUISVILLE & NASHVILLE RAIL ROAD CO 1912 1 KB 135

RADIO CORP OF AMERICA V RAULAND CORP 1956 1 QB 618

AMERICAN EXPRESS WAREHOUSING LTD V DOE 1967 1 LLOYDS REP 222

Synopsis

Conflict of Laws

Testimony; examination of witness in connection with a civil action before a foreign court; relatives of victims of air crash had commenced an action seeking damages in the United States against the owners and operators of the aircraft that crashed and others, including the applicant, an aircraft maintenance company that had removed oxygen generators from other aircraft belonging to the owners and had loaded them onto the aircraft that crashed; High Court had made an order ex parte requiring records custodian of Shannon Aerospace Ltd to give evidence on oath and to produce all documents in his power or procurement relevant to the removal, replacement and disposal by Shannon Aerospace Ltd of oxygen generators from an aircraft belonging to the owners; records custodian, having worked on the aircraft had not worked on or supervised work on the aircraft in question and had no oral evidence to give; whether request in reality a request for discovery of documents or a request that the records custodian produce documents ancillary to his oral testimony; whether order requiring him to give testimony could be set aside; s.1, Foreign Tribunals Evidence Act, 1856.

Held: Court has no power under s.1 to order discovery of documents; real basis for seeking the evidence in question was to obtain the equivalent of discovery; order set aside.

Air Crash in the Florida Everglades on May 11, 1996 v. Valujet Airlines Inc. High Court: McCracken J. 01/07/1999 - [1999] 2 IR 468

The witness whose testimony is sought has deposed that he had no involvement in relation to the removal, replacement, storage, or disposal of the oxygen generators of the type alleged to be at fault in the air disaster the subject matter of the proceedings in the United States and therefore, he had no oral evidence to offer on the issue. Consequently, the application to take his testimony is in reality an application for the discovery of documents from the records of his employers and the Court has no power to make such an order. The High Court so held in discharging the ex parte order made directing that the witness give his testimony.

1 JUDGMENT of Mr Justice McCrackendelivered the 1 st day of July 1999

2 By an Order made ex parte by me on 1 st February 1999 on the application of Sabretech Inc. (hereinafter called "the Applicant") I ordered, pursuant to the provisions of Section 1 of the Foreign Tribunals Evidence Act 1856, that Raymond Kazmaierczak (or other appropriate person) the records custodian of Shannon Aerospace Limited do appear before an Examiner to be examined on oath or affirmation on certain matters set forth in Exhibit "A" attached to a letter of request issued by Edward B Davis, Chief United States District Judge, Southern District of Florida on 22nd September 1998, and further ordered that the said Raymond Kazmaierczak do produce on the same day all documents in his power or procurement referred to in the said exhibit "A".

3 Mr Kazmaierczak is head of the Engineering and Planning Department and Records Custodian of Shannon Aerospace Limited, and Shannon Aerospace Limited have applied to me to set aside the Order of 1 st February 1999. They contend that in the circumstances the request from the United States Court does not come within section 1 of the Foreign Tribunals Evidence Act 1856.

4 That section reads:-

"Where, upon an application for this purpose, it is made to appear to any Court or Judge having authority under this Act that any Court or Tribunal of competent jurisdiction in a foreign country, before which any civil or commercial matter is pending, is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction of such first mentioned Court, or of the Court to which such Judge belongs, or of such Judge, it shall be lawful for such Court or Judge to order the examination upon oath, upon interrogatories or otherwise, before any person or persons named in such Order, of such witness or witnesses accordingly; and it shall be lawful for the said Court or...